MAESTREY v. JOHNSON et al

Filing 13

ORDER ADOPTING 10 Report and Recommendations; DENYING 7 Motion to Appoint Counsel; and DENYING 9 Motion for Preliminary Injunction. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/12/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MICHAEL ALFRED MAESTREY,
Plaintiff,
v.

Warden GLEN JOHNSON, et al.,
Defendants.

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CIVIL ACTION NO. 5:17-CV-68 (MTT)

ORDER
United States Magistrate Judge Stephen Hyles denied Plaintiff Michael Alfred
Maestrey’s motion to appoint counsel and recommended denying the Plaintiff’s
Emergency Motion for Injunctive Relief (Doc. 9). See generally Doc. 10. The Plaintiff
has objected to both. See generally Doc. 11. Pursuant to 28 U.S.C. § 636(b)(1), the
Court has considered the Plaintiff’s objection and has made a de novo determination of
the portions of the Recommendation to which the Plaintiff objects. The Court has
reviewed the Recommendation, and the Recommendation is ADOPTED and made the
order of this Court.
I. The Plaintiff’s Motion for Reconsideration
The Court construes the Plaintiff’s objection to the denial of his motion to appoint
counsel as a motion for reconsideration. See id. at 2-4. Pursuant to 28 U.S.C. §
636(b)(1)(A), this Court “may reconsider any pretrial matter [decided by the Magistrate
Judge] . . . where it has been shown that the [M]agistrate [J]udge’s order is clearly
erroneous or contrary to law.” See also Brown v. United States, 748 F.3d 1045, 1055

(11th Cir. 2014); Muhammad v. HSBC Bank UNSA, N.A., 399 F. App’x 460, 462 (11th
Cir. 2010). Here, the Plaintiff has not made either of these showings, and, thus, his
Motion for Reconsideration is DENIED.
II. The Plaintiff’s Motion to Amend
To the extent the Plaintiff attempts to plead new facts in support of his
Emergency Motion for Injunctive Relief (Doc. 9), the Court construes this as a motion to
amend. Newsome v. Chatham Cty. Det. Ctr., 256 F. App’x 342, 344 (11th Cir. 2007).
The Court has discretion to grant or deny such a motion. Williams v. McNeil, 557 F.3d
1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to decline to consider a
party’s argument when that argument was not first presented to the magistrate judge.”);
Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006) (holding a district court does
not abuse “its discretion when it accepts an argument that had not been presented to
the magistrate judge.”). Accordingly, the Plaintiff’s motion to amend is DENIED.
Even considering his new factual allegations, the Plaintiff still fails to meet his
burden of proving the elements required for a preliminary injunction. Of the newly
alleged facts, two issues merit discussion. First, the Plaintiff states an injunction is
necessary to prevent “real and present danger to [his] life.” Doc. 11 at 7. The Plaintiff
gives several examples of this, including how he has been targeted by gang members.
Id. at 6-7. However, while he does appear to face danger from gang members if he
were to transfer from protective custody to general population, the Plaintiff has not
alleged facts suggesting that the Defendants are currently considering transferring him.
Indeed, the Plaintiff admits that he is “currently housed in a segregation cell (J-2-242)
on (PC) protective custody status.” Id. at 4. Thus, the Plaintiff’s current housing

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situation appears to be as safe as it possibly could. Second, the Plaintiff now “seeks
injunctive relief to prohibit Defendants from committing ‘Diesal Therapy’ . . . i.e.,
transferring Plaintiff to another prison in an effort to thwart these proceeding[s].”
(emphasis added). Id. But the Plaintiff has not shown how a transfer would affect his
prosecution of the case. Thus, an amendment to the Plaintiff’s Emergency Motion for
Injunctive Relief would be futile.
III. Conclusion
The Court has reviewed the Recommendation, and the Court accepts and adopts
the findings, conclusions, and recommendations of the Magistrate Judge. The
Recommendation is ADOPTED and made the order of this Court. Accordingly, the
Plaintiff’s Motion to Appoint Counsel (Doc. 7) and Emergency Motion for Injunctive
Relief (Doc. 9) are DENIED.
SO ORDERED, this 12th day of September, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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